Pubdate: Mon, 19 Jun 2017
Source: Vancouver Sun (CN BC)
Copyright: 2017 Postmedia Network Inc.
Author: Ian Mulgrew
Page: A3


The B.C. Court of Appeal has struck down as cruel and unusual
punishment the six-month mandatory jail sentence for growing between
six and 200 marijuana plants for the purposes of trafficking.

The high court decision, which echoed previous rulings that denounced
as unconstitutional other former Tory tough-on-crime provisions,
underscored the new federal Liberal administration's tardiness in
fulfilling promises to review such laws.

The decision pointed out that sea-changes in social attitudes, to
which the Conservative government seemed oblivious, must be taken into
account and "energize" Charter interpretations.

"Values are not immutable," explained Justice Gregory Fitch, writing
with the support of Chief Justice Robert Bauman and colleague Peter

"They change in response to changing social conditions, social
sentiments and expectations, evolving human knowledge, and
technological advancement. For this reason, the Charter must adapt to
changes in social context and not remain frozen in the past."

This drug-trafficking provision was enacted as part of the 2012 Safe
Streets and Communities Act, which doubled the maximum sentence from
seven to 14 years and eliminated conditional sentences for producing

"Assessing whether the mandatory minimum term of imprisonment
applicable in this case is grossly disproportionate requires
consideration of widespread changes in social attitudes toward
small-scale, non-commercial marijuana production and use," Fitch
wrote. "The court cannot blind itself to these changes, or to the
different policy and legislative choices currently being debated to
address the complex issues that arise in this area."

Prosecutors insisted, however, that compassion and "small-scale" had
nothing to do with the case in question - Keith Steven Elliott, 42 at
the time, was working at a lucrative commercial Kelowna growing
operation feeding the black market. The 195-plant guerrilla garden
reputedly produced about 24.4 pounds (about 11 kilos) of bud, which
would have fetched between $78,000 and $117,000.

Elliott was paid $20 an hour, given room and board and pot in exchange
for trimming the plants and doing chores in the grow-owner's home for
about 18 months until a police raid in June 2013.

With no previous record or substance-abuse problems, he blamed his
poor decisions on being down on his luck.

Afterward, he moved in with his brother in Surrey and found work as a
heavy equipment operator in construction.

Former B.C. Supreme Court Justice Lauri Ann Fenlon, now on the appeal
bench, decided the mandatory sentence was unconstitutional, and in May
2016 sentenced Elliott to only two years probation because he had
turned his life around.

Irrespective of the mandatory provision, the Crown argued that
Elliott's sentence was a marked departure from punishment given
similar offenders.

Even Fitch agreed there was nothing inappropriate about imposing the
mandatory minimum in this case, but he declined to second-guess Fenlon.

The constitutional infirmity of the provision rested, he said, not on
the law's application to Elliott, but to its failure to draw a
distinction between "those who produce and sell significant quantities
of marijuana for commercial gain and those who grow small amounts to
give to friends in need."

"The real issue in this case is whether reasonably foreseeable
applications of the mandatory minimum will result in the imposition of
grossly disproportionate sentences on others," he emphasized.

For instance, the Crown conceded a university student growing seven
plants intending to keep one for himself and give six to friends would
face the six-month mandatory.

Similarly, a hypothetical 65-year-old woman, using pot to relieve
chronic pain, growing seven plants in her garden, intending to keep
one and give six to ailing friends in a support group, would also fall
within the ambit of the punishment.

"The imposition of a six-month term of imprisonment on the
hypothetical 65-year-old small-time grower is so excessive that most
Canadians would be shocked to learn that such an offender would be
required to serve at least six months in prison," Fitch concluded.

The lack of proportionality is also why the Supreme Court of Canada
previously struck down two other Tory minimum sentencing provisions.

It ruled unconstitutional a firearms provision that caught too wide a
range of conduct - from the outlaw who carried a loaded prohibited or
restricted firearm to the responsible gun owner guilty of no more than
a licensing infraction.

In the second case, it struck down another drug-trafficking provision
for similarly capturing not only serious illicit dealing but also much
less blameworthy behaviour.

"We're pleased with the result, but people still have to go to court
to challenge these mandatory minimums instead of (the Liberals)
abolishing them," Elliott's lawyer John Conroy complained.

"My concern is the government not undoing the Harper legacy and
getting us back to where we were - especially in light of the
legalization legislation. We will see if they appeal."

The Liberals have committed to legalizing recreational marijuana use
by July 2018, but thousands continue to be charged and prosecuted
under existing laws.
- ---
MAP posted-by: Matt